Tenancy Agreement Break Clauses

What are break clauses in Tenancy Agreements?

A break clause is a clause in a tenancy agreement that provides both tenant and landlord the opportunity to terminate the tenancy agreement early during the fixed-term (e.g. the tenant can terminate a 12 month tenancy 6 months into the term). Essentially, either party can “break” the tenancy before the fixed end date, as long as the correct procedures are followed.

However, it’s important to note, the landlord doesn’t have a guaranteed right to possession with a break clause during the first 6 months of the tenancy (i.e. a break clause can only be enforced after 6 months), unless there are grounds for eviction (e.g. rent arrears).

Here is an example of a break clause (please do NOT use it without seeking legal advice):

7.9 Tenancy Break Clause
7.9.1 In the event that the Tenant shall desire to terminate the tenancy hereby created at or at any time after the end of the first six months thereof he shall give the Landlord not less than one months previous notice in writing of such desire and shall up to the time of such determination pay the rent and observe and perform the agreements and obligations on the tenants part.

7.9.2 If the Landlord shall desire to terminate the tenancy hereby created at or at any time after the end of the first six months thereof he shall give the Tenant not less than two months previous notice in writing of such desire then immediately upon the expiration of such notice the tenancy hereby created shall cease and be void.

Serving notice to break the tenancy

The landlord is required to provide at least two months notice to the tenant if they wish to enforce the break clause by serving a Section 21 Notice. So for example, if the tenancy starts on 1st of January, the landlord should serve notice by 1st May (i.e. tenant should have received notice by then), which means the tenant should vacate on July 1st (6 months from when the tenancy began).

If the tenant wants to enforce the break clause, the minimum notice required should be clearly stipulated in the break clause (1 month notice period is normal). Additionally, there might be certain conditions attached to the clause that need to be met. For example, it may stipulate that the tenant must have paid all of the rent due before they’re allowed to use the break clause.

Tenants should serve notice in a written notice, known as a tenancy surrender notice. It’s also worth noting that if the tenant wishes to end the tenancy on or after the fixed end-date, they only need to provide one months’ notice- that is their statutory right.

What if the tenant vacates early?

This isn’t really a problem, and the reality is, landlords can’t physically prevent tenants from vacating early. However, the important thing to remember is that the tenant will remain liable for the rent until the last day of the termination date (based on the break clause end-date).

Why the break clause is used

Break clauses really are about flexibility for both tenant and landlord. They provide landlords/tenants the opportunity to break a tenancy if personal circumstances change. This could include scenarios such as relocating for work related purposes, changes financial circumstances, or even because the relationship between the tenant and landlord turned sour.

The reason I don’t use break clauses

I personally don’t use break clauses in my tenancy agreements, the reason being is that they don’t seem convincingly reliable (from what I’ve read and been told), which makes them kind of scary to me. Let me explain…

Assuming the landlord is relying on the break clause by serving their tenant with a notice- if the tenant refuses to vacate and remains in the property, the landlord will need to issue court proceedings so they can get a order possession from the Judge. The Judge will then look at the break clause to see if it is valid. If the Judge is not happy with the clause the landlord will not get possession.

Why wouldn’t the clause be valid? The break clause is one of those clauses that can be drafted and interpreted in many ways (apparently). If the clause is clearly drafted and equally fair to both parties, the landlord will have a better chance of getting possession. However, if the clause is poorly drafted and deemed unfair (e.g. if it is in the favour of the landlord), it is very unlikely that it will be enforceable.

To be fully enforceable in law, break clauses need careful drafting with a high degree of legal expertise – these agreements should be drafted by a solicitor or barrister, or obtained from a known reliable published source. But ultimately, every clause in a tenancy agreement needs to be deemed as “fair”

My preferred alternative to a break clause

Personally, I’d rather just issue my tenant with a 6 month tenancy agreement (that’s the minimum term allowed). That way, if the tenant or landlord wishes to end the tenancy, they can do without relying on a break clause. But also, and perhaps more crucially, if the tenant refuses to vacate after a valid possession notice (Section 21) is served by the landlord, the Judge should grant possession immediately, no questions ask, because the tenancy’s fixed term would have.

In the event that after the 6 months both parties are happy to continue the tenancy, then the tenancy can either roll onto a Periodic Tenancy or a new tenancy agreement can be issued.

Issuing a 6 month tenancy just seems much safer and reliable because there’s little margin for error in comparison.

Mutually terminating the tenancy early

If at any point during the fixed term both landlord and tenant agree to mutually terminate the tenancy (for whatever reason), whether there’s a break clause or not, the normal procedure is for the tenant to vacate all his/her possessions and hand back the keys.

In the event that the tenant wants to surrender the tenancy without the landlords agreement, the tenant will be contractually obliged to pay rent for the entire length of the fixed term. Similarly, if the landlord wants the tenant to vacate early while the tenant has no interest, the landlord cannot reposes the property early without grounds for eviction.

Do you use break clauses?

Disclaimer: I'm just a simple landlord blogger, I am not qualified to give legal or financial advice. Any advice I give is my opinion based on my experience, and is never legal or professional advice. You should always get professional advice on any legal and financial matters!

206 Comments- Join The Conversation...

Showing 156 - 206 comments (out of 206)

David6th December, 2017 @ 02:38

@Jess

Thanks for kind words but just doing what I can when I can.

For a tenancy that started after Oct 1 2015 where the original deposit was protected on time AND the PI issued on time, then it is deemed as served if that tenancy becomes SPT, i.e. if the tenancy expires and tenant(s) remain in property.

However, for a new tenancy agreement (not a one page renewal) they need to issue new PI, note that PI is not the confirmation from deposit company, it is a separate notice that contains all the information about the tenancy. This will differ from original tenancy in at least start date.

I have seen documents in Court papers from one the deposit companies where they are making an attempt to provide the PI in a new format. In my opinion it is only a matter of time before this is challenged, it is not provided by the Landlord and it misses some of the information required. We had this before with DPS terms, time and time again I saw them challenged, but the How to Rent doc had put paid to such claims (if provided).

The simplest way to find out if your deposit is still protected is to check these links with the details on the new contract

http://bit.ly/chkdep1

http://bit.ly/chkdep2

http://bit.ly/chkdep3

It needed to be protected within 30 days, in the event of a action for sanctions you would not be able to proceed without your housemate authorising you to bring the claim.

Usually it is the same for the tenancy, you are joint and severally liable for the performance of the contact.

The term you quoted talks about either party, but that usually means either the landlord or the tenant, in joint tenancies you usually both have to agree, but it depends on what else is said in contract.

I would need to see a scan of whole contract to be totally sure. If you want me to check, let me know and I will give you details of to get it to me.

It seems to me that your Landlord is actually in breach of the agreement, it will specify the names of the tenants and most tenancies have rules about guests, how long they can stay etc.

You could drop a line to the Landlord informing them that you have advised their agent that housemate is in breach of the agreement and either they enforce it or you take action to recover your losses. There is a loss of amenity if you have to share it with a 3rd person and it was intended for 2 people.

There are all kinds of aspects to this, you may not feel safe, your food could be being eaten, the two of them are creating a hostile environment.

You can report it to the Council to see if they consider it overcrowding, it is a bit thin but it creates a public record and you should provide a log of every day he has slept at your property. It does not matter that he pays rent elsewhere to an Ex, what matters is where he lays his head and how often, so create the log.

You need to think of your goal, getting them to enforce will probably piss off housemate and may make them difficult to live with.

If he were not a leech you might have offered for him to take over.

If the contract started 1st Aug 2017 with a six month break clause you are looking at February 1st as the earliest break, then December 1st was earliest day to give notice. So if you give the notice on 7th December the tenancy can be terminated on 7th Feb.

You might want to keep the housemate sweet by not attributing blame, just say you might be taking a new job and need to get out so you are bringing contract to an end.

See if she will sign a notice to quit, she may then decide to have tenancy in her name, take a new tenant or get the leech to man up.

If she will not sign notice to quit then you can spin it another way, say you will get her some cash, say around a third of the deposit. If she goes for that you get her to sign notice to quit and an authority for you to bring any claim against landlord on her behalf in respect of the Housing Act.

If she will not agree then you flip it, you approach the Landlord, say you want them to release you from your obligation and end the tenancy giving you back your deposit in full and providing you with a positive reference.

You say if they do this you will sign a settlement agreement not to bring a claim for their failure to protect deposit or issue the prescribed information within 30 days. In such an agreement you will agree not to authorise any claim.

You really have to do this direct with the Landlord, agents are renowned for getting in the way. They will give you all sorts of BS about your liability.

Your tenancy agreement and the original PI should have the details of the Landlord, if not you can request it and if the agent does not provide it you are entitled to temporarily withhold rent until they do.

You can of course pay £3 to Land registry site and get Landlords name and address from there. If the original PI does not include landlords details then it is invalid and even more sanctions may be liable.

156

MdeB6th December, 2017 @ 09:58

@Jess
Case law says that to exercise a break clause before the end of the fixed term requires the consent of all the people that signed as tenants; to end a periodic tenancy requires only notice from one of the tenants.

One thing that David missed is that the property is now a HMO (House of Multiple Occupation).
If HMO licensing is required in your area,then the landlord may be in breach of the law, and that would give you leverage to get something done.

Also David wrote "If the contract started 1st Aug 2017 with a six month break clause you are looking at February 1st as the earliest break, then December 1st was earliest day to give notice".
That is incorrect: December 1st is latest date that notice can be given (and that may be cutting it close); notice can be given at any time before December 1st (in this example). It is always best to give a few days over the 2 months, to allow for delays in delivery of the notice

157

David6th December, 2017 @ 10:16

@Jess

I stand by what I said in my post, it seems that MdeB just wants to respond for the sake of it, usually with anal retentive nit picking that do not help you or others reading the blog.

Your property will NOT be an HMO unless it exceeds 2 households, a couple is one and you are the other, that does not exceed 2, I have demonstrated before that MdeB struggles with maths.

With regard to your notice, I generally do not suggest that people go into a time machine and give notice.

The key part of your break clause is the "at any time after six months from the commencement date of this agreement"

So the only limit is AFTER six months which in the example I gave would be to expire ANY TIME after February.

So it being ANY TIME means there is no deadline, it is effectively a minimum term of six months which is what I said.

The contract may be terminated anytime after that subject to terms and will expire at the end of the term unless it is a contractual periodic.

"this agreement may be terminated by either party giving at least two months notice in writing to expire at any time after six months from the commencement date of this agreement as specified in terms..."

With regard to notice from both tenants, the most important thing is what the agreement actually says, which is why I suggested reviewing it.

158

vince6th December, 2017 @ 10:43

@David
@MdeB

Thank you so so much for all your advices! I really appreciate it.
We'll most probably accept the 2 months break clause.

Does it mean it's not expired? It doesn't say anywhere that it's continuously protected.
We did also receive the PI.

Many thanks

159

David6th December, 2017 @ 10:59

@vince

The terms will vary, some are protected for 3 months beyond a tenancy some expire same day.

Did you check online, did it say it was still protected online?

Your certificate is a snapshot of the status at the beginning of then tenancy. You need to check the terms, "ending on or after" means exactly that, is it referring to the tenancy or the protection?

I have seen agents kicked off or even them screwing up paperwork. There is no hurry just take screenshots and save the pages shown online.

For now get a copy of the proposed lease and review it.

160

Jess6th December, 2017 @ 11:43

@David

Deposit is held in DPS, under the same deposit ID as 2016, we did take out a new tenancy, not a renewal. The other tenant is lead tenant so unsure if she has had new confirmation. Landlord has stated the agency as his notice to address.

We haven't been on speaking terms for the last 4 months since leech moved in, she believes she's entitled to have him over because its her boyfriend. I've previously requested for him to take over the tenancy but he does not have ID, passport or bank account, even though he's working here and has lived here all his life.. They disagreed with taking over my half of the tenancy and paying higher bills/rent obviously.
I've started a diary of when he's here, it's my word against theirs so doesn't mean a lot. He's been here every day since the 7th November apart from 5 nights when they both went away and 1 night he spent in A&E for an overdose.

Would be great if you could look over the contract to see if I can use the break clause, the only thing I can see that joins us is under terms and condition it says "the tenant herby acknowledges that the rent and tenancy obligations are due jointly and severely from all tenants"

Thanks again
I'm in such a downward spiral at the minute and I just need to see a way out.

161

David6th December, 2017 @ 12:55

@Jess

To send me a PM, first click "Landlord Forum" at the top of this page, then register for that forum and click on the email sent to you to confirm your email address.

Then log into the forum and after logged in follow the link below.

http://bit.ly/davidpip

and send me a PM

162

MdeB6th December, 2017 @ 13:44

@david
@Jess

For someone who has suggested they have some form of legal expertise, you are very lax with accuracy.

It is important that accurate information is given, otherwise relying on that information may result in one having a legal position other than expected. It is not anal nit picking to correct inaccuracies in information provided.

Also a HMO is 3 or more people forming 2 or more households, not 3 or more households as you state.

I rarely struggle with maths, and have a degree in it.

I agree with David that if the contract allows one of the joint tenants to exercise the break clause, then you probably can (but it might be an unfair term on the other joint tenant), but if it does not say that, then it requires both of you to sign to to be valid.

163

Jess6th December, 2017 @ 14:22

@David
@MdeB

Thanks again both, no clue on the HMO thing, (my basic understanding is that its the same as tenants in common.) Leech is not on the tenancy so hasn't changed the actual tenancy only helped to break it.
Still looking for my get out of jail card.

Can I get out on the basis that the other housemate has breached the contract and therefore forfeited our joint rights?

As far I can see the deposit is still sitting 'active' in DPS, and expired 1/8/17. There's no new entry for the AST commencing on 1/8/17

164

David6th December, 2017 @ 14:51

@MdeB

You are really just showing yourself up to be some sort of keyboard warrior wanting a pissing contest or in plain terms you are a bit of a Pratt.

First you say I missed the HMO potential; I did not because it is not relevant, the guest is not a named tenant for a start, the lead tenant would suggest he is an occasional guest.

The HMO definitions are a combination of several factors, number of floors, number of tenants, number of households and even certain streets in some areas. Not all of these definitions are actually defined properly in Law or are left to the LA to define.

https://www.legislation.gov.uk/ukpga/2004/34/section/254

To make things more interesting, the Council can use
the Act to define things for themeselves:

(6)The appropriate national authority may by regulations—

(a)make such amendments of this section and sections 255 to 259 as the authority considers appropriate with a view to securing that any building or part of a building of a description specified in the regulations is or is not to be a house in multiple occupation for any specified purposes of this Act;

(b)provide for such amendments to have effect also for the purposes of definitions in other enactments that operate by reference to this Act;

(c)make such consequential amendments of any provision of this Act, or any other enactment, as the authority considers appropriate.

In addition to that there is a plethora of case law which I am not going to waste time on just because you are a Pratt.

It is just ridiculous to suggest that the property in question is an HMO.

You can suggest a property which is occupied by three of more unrelated persons, but the term unrelated is undefined in law and subjective, for example a household can be a single person or an extended family, children, step children, foster children, aunts, uncles, parents, mother in law or grandparents (there is a lot of cultural support here), not to mention sisters Brothers nephews cousins.

It can mean people that are married or people that live together as married, it can include same sex couples.

Knowing this and having got an alleged HMO allegation withdrawn quite recently, I do not waste mine or readers time with suggestion it is an HMO after reading her facts.

With regard to your maths, your alleged degree does not undo your mistakes, we are not talking about quadratic equations or binomial distribution which a teenager can do, but more like basic addition and subtraction of single digits; 6-2=4.

MdeB if you are not going to add actual value offering help then please refrain from nit picking, it detracts from the quality of the blog.

165

MdeB6th December, 2017 @ 19:25

@ David
It is a shame that you cannot accept when you are wrong and have to resort to insulting language that in no way helps readers of this site.
You have a lot to offer the posters with your knowledge and time.

My aim is to provide accurate information and to correct errors that may have been posted. Reliance by others on an error on your part will have no effect on you, but could have significant financial implications for tenants that rely on it.

I'm not sure why you introduced the term "unrelated"; it seems to be just so that you can shoot it down and hope that people will think it relates to something I wrote. I only mentioned Household, and that is well defined in the Housing Act 2004.

The definition of a HMO is well defined in the 2004 Act and does not depend on the number of floors. You are confusing "HMO" with "HMO requiring a licence".
That is why in my reply to Jess I said "If HMO licensing is required in your area".

You are right that the other tenant may lie about how often the man stays, but lying does not change the facts.

I say again that it is a shame that you cannot acknowledge when you are wrong, as it casts doubt on all the good stuff you have posted.

166

MdeB6th December, 2017 @ 19:36

@Jess 164

I think it unlikely that you could get out of the contract on that basis, but I have no knowledge or experience in that area.

Regarding the deposit, it depends on the agreements.
If both agreements were for the same tenants and the same property, and it is the DPS custodial scheme, then the deposit is properly protected.
If either of the first two are not met, then it should have been re-protected.
Otherwise, if it is the insured scheme, then you would need to look at the scheme's terms and conditions, or ask the DPS.

167

Jess6th December, 2017 @ 23:29

@MdeB
@David

Lads quit fighting. I need all the help I can get!

@MdeB
It's in a custodial DPS - But for a 12 month period starting 1st August 2016!

168

MdeB7th December, 2017 @ 12:28

@jess

Protection in the DPS custodial scheme never expires. That is why I use it.

Please confirm that the tenants are the same on the August 2016 and August 2017 agreements.
If they are not, then the deposit is not properly protected in law, but IS safe for the tenants.

169

vince20th December, 2017 @ 17:41

Can you confirm if this is right then? If we get a contractual periodic tenancy in a fixed-term contract with a 2 months break clause, does that mean that when the contract expires and goes periodic, we'll still have to give 2 months notice by contract, instead of one month, like for the statutory one. Is that correct? Just want to make sure they don't come up with excuses not to give us a contractual periodic tenancy.

Thanks!

170

David20th December, 2017 @ 18:28

@Vince

I just want you to be clear on the difference between a break clause and a notice clause.

Break means literally that, that you are looking to terminate the agreement in accordance with the terms laid out in the agreement.

Typically the Term may be 6 month, a year, 2 years, 3 years, so the break clause in such an agreement is a way to get out.

Some break clauses will say that you can exercise the break clause only after say 8 months and in such circumstances you have to give X months notice.

A notice clause on the other hand says that you have to give them X months notice of your intention to terminate (but still subject to the other terms).

For example a Landlord can give you a 1 year contract with no break clause and say you need to give them 2 months notice of your intention to terminate the agreement. Such an agreement would be unenforceable because the contract ends at the end of the term anyway. Such terms are usually put in so a Landlord can get adequate notice to get a new tenant and of course it is advisable to let a Landlord know if you wish to stay.

If you do not renew, extend or replace a tenancy but stay in the property at the end of the term then by law a Statutory Periodic is created. This mirrors the previous agreement, it is the best thing for the tenant as the tenant only needs to give one months notice while the Landlord has to give the 2 months notice on a proper S21 form.

A contractual periodic prevents a statutory periodic tenancy from being created because the terms therein are open ended, it may have a minimum term of say 6 months but say that thereafter it continues until terminated in accordance with the terms of the agreement, which may include a notice term of 2 months.

If there was minimum term of 6 months and a notice of 2 months and an a break term that came into force at 4 months you would need to give 2 months clear notice after 4 months had expired and this would correlate with the 6 month minimum term.

I just wanted to clarify this in case you are confusing a notice term of say 2 months and a term of 1 year with no explicit break clause, because that would mean you had to stay for 1 year and had to give notice 10 months in.

Hopefully by now you have seen the agreement and can see whether there is indeed a break clause.

You are currently on an SPT, make sure any agreement is not back dated, it should commence on or after day of signing.

171

vince20th December, 2017 @ 19:54

We didn't get the contract yet, as we were trying to see if we could get a better deal, while delaying everything too.
I'm not totally sure I understood all of this.
We told them we'll accept a 1 year fixed term contract with a 2 months break clause. So what exactly are these 2 months?
Does it mean that the minimum term is also 2 months? Or they can still put a minimum term of say 6 months?

Thank you

172

David20th December, 2017 @ 20:14

@Vince

A once year fixed term is fixed, that means you take it for a year.

The only way to get out of that is to have a BREAK clause it re-read this blog page to understand what a BREAK clause is, it can be worded in various ways

As the post above says here is an example

7.9 Tenancy Break Clause
7.9.1 In the event that the Tenant shall desire to terminate the tenancy hereby created at or at any time after the end of the first six months thereof he shall give the Landlord not less than one months previous notice in writing of such desire and shall up to the time of such determination pay the rent and observe and perform the agreements and obligations on the tenants part.

7.9.2 If the Landlord shall desire to terminate the tenancy hereby created at or at any time after the end of the first six months thereof he shall give the Tenant not less than two months previous notice in writing of such desire then immediately upon the expiration of such notice the tenancy hereby created shall cease and be void.

However it may not explicitly say it is a BREAK clause, it may just refer to a TERM of 1 year starting on X date and in that section say that contract may be terminated only after X months by giving X months notice.

If it does not have a term that allows such a BREAK then you are in it for a year.

Now you can still go, but you will end up liable if you leave early without there being a a break clause for Landlords costs, these have to be real and not some fake daily rate or admin charge.

I guess you can look at your previous agreement and see if it has a break clause.

2 Months NOTICE simply means that when you are allowed to go (via other clauses) you are required to give 2 months notice but as I said earlier if the contract ends in 2 months anyway it is just a hope clause.

So you should be looking for a clause that gives you a way out of the agreement, it may just say

"notice may be given to terminate this agreement anytime following 8 months after the start date"

It may have an "initial term" of say 6 months, and say

"notice may be given to terminate this agreement anytime following 4 months after the Initial term"

Which in that scenario would be 10 months and with 2 months notice would effectively be 12 months.

I can't give you every permutation of how your contract has been constructed, which is why you need to be given a copy of the proposed agreement so you can get appropriate legal advice.

You are entitled to request a change, cross out clauses and the Landlord is entitled to not agree, meanwhile until there is agreement the SPT continues and needs 2 months notice on the proper S21 form.

There is nothing really wrong with the SPT for the Landlord except that they are only entitled to 1 months notice, sometimes they are better sticking with the SPT.

173

Jay23rd May, 2018 @ 21:56

I have lives in property for over 5 years always paid rent on time and maintained property to a high standard renewed contract last nov 2017 for a further 2 years
Now landlord has given two months notice to vacate property as they want to sell
How do I go about it as still under a term of 18 months remaining help !!!!

174

David23rd May, 2018 @ 22:47

@Jay

Did the Landlord issue you with a S21 notice or just give you notice?

A S21 would only be legally valid if there were a break clause in the tenancy and the appropriate conditions have been met.

Without a break clause the S21 would be thrown out of Court, but some Landlords feel it is worth sending in case it makes you leave.

This may be an opportunity to negotiate a fee to leave

You do not have to show potential buyers around if it is not convenient and you may change the locks (regardless of what the tenancy agreement says) as long as you change the cyclinder back when you eventually leave.

If you wish me to look over your agreement.

175

Adrian6th June, 2018 @ 07:11

Hi,

See below extract from the break clause. the agent is saying that notice supossed to be given in the sixth month and not before or after. move in date was 13 of November 2017 and is a 12 months ASP with the 6 month break clause. I think the break clause is unfair as is not straight forward, diferrent clause for tenant than landlord and I'm struggling to understand it.

2. Break Clauses Landlord’s Break Clause

The Tenant agrees that the Landlord has the right to terminate the Tenancy after the first Six Months by giving the Tenant not less than two months notice in writing to end the Agreement. The notice must expire at the end of a relevant period, being the 13" day of the month. When the notice period expires the Agreement shall cease. This does not affect the right of either the Landlord or the Tenant to pursue their legal remedies against the other for any existing breach of any rights under the Agreement.

Tenant’s Break Clause

The Landlord agrees that the Tenant has the right to terminate the Tenancy after the first Six Months by giving the Landlord not less than two months notice in writing to be served by first class post or hand delivery to the address:
to end the Tenancy. The notice must be served prior to the date upon which it takes effect but cannot take effect any earlier than 1 t May 2018 and cannot expire any earlier than 13" July
2018. Such notice must expire at the end of a relevant period, being the 13* day of the month. When the notice period expires the Agreement shall cease. This does not affect the right of either the Landlord or the Tenant to pursue their legal remedies against the other for any existing breach of any rights under the Agreement.

176

David6th June, 2018 @ 17:40

@Adrian

You are right that the break options of the Landlord and Tenant must be substantially the same or it becomes an unfair contract term.

The restrictive dates and terms also are unfair contract terms

He also can't enforce the 2 months notice.

I can help you draft a letter to the Landlord if you contact me via the forum, see post 175 for instructions on how to do this.

The Landlord has to mitigate his loss, so he has to try to get a new tenant at the earliest possible convenience, the fact that you can get tenants free via OpenRent shows there is no loss.

Landlords think that they can write any old shit in a tenancy agreement but that does not make it valid or enforceable.

I would need to see the agreement but if badly drafted such daft restriction might not only void the restrictive terms but the whole agreement rendering it a Statutory Period Tenancy.

In any claim a Judge would kick out those restrictive terms and simply say that you are entitled to give notice after the first Six Months, that is the mutual spirit of the agreement. The window of time would be rejected.

Have you checked that your deposit was protected properly?

If not there is a sanction payable and this can often be leveraged to reach an agreement.

Have a check on the following links for the three schemes.

http://bit.ly/chkdep1

http://bit.ly/chkdep2

http://bit.ly/chkdep3

Do not provide too much detail here that may identify you or your landlord, use the forum.

177

MdeB6th June, 2018 @ 22:46

@Adrian #176:

In my non-legal opinion, the clauses appear to be very poorly written.

The first sentence of each clause appears to say that the tenancy can be ended at the 6-month point, but the subsequent paragraphs appear to suggest that the intent is that the tenancy can be ended at the end of any month from the 8th month onward.

The tenant clause then says "cannot take effect..." and "cannot expire...". These seem to me to mean essentially the same, but they have different dates, making it ambiguous.

Assuming that you had no opportunity to influence the clauses, I believe that the law says that where clauses in consumer contracts are ambiguous, they should be interpreted to the benefit of the party that did not write the contract.

Therefore, if the landlord is trying to get you out and you do not want to go, then it would seem reasonable to me for you to argue that the landlord clause allows notice to expire only at the end of 6 months.

If you are trying to get out and landlord/agent doesn't want to let you (because they are saying "only at end of 8 months") it seems reasonable to me to argue that "at the end of a relevant period" means that you can end the agreement at the end of any month by giving 2 months notice. Any other interpretation would be unfair (imo).

178

MdeB6th June, 2018 @ 22:53

@david #177

You wrote "You are right that the break options of the Landlord and Tenant must be substantially the same or it becomes an unfair contract term."

That is not quite right. If it is unbalanced in favour of the landlord it is unfair, but if in favour of the tenant (consumer) it is fair.

I often include break clauses allowing tenant to end agreement early but not me (landlord), as I understand that people's circumstances change.

179

Gina19th August, 2018 @ 21:26

Hi,
I please need some advice. I have an 6 Months fixed term contract and I have to terminate early because of personal circumstances. My Tendancy Agreement says the following for termination:
1 Ending the Tenancy
1.1 If the Tenant intends to vacate at the end of the fixed term, or at any later date, he
agrees to give the Assigned Property Manager at least thirty days prior Notice in
writing by registered post before the 1st of each month.
1.2 While the tenancy is periodic the thirty days written Notice must expire the day before
a Rent Due Date.
1.3 If the Tenant intends to vacate on the contract break date as outlined in paragraph 1.6,
he agrees to give the Assigned Property Manager at least thirty days prior Notice of
the break date in writing by registered post.
1.4 If the Tenant terminates the tenancy during the fixed term, whether notice has been
given or not, then the tenant agrees to pay a £500 early termination fee to cover the
costs of re-marketing, voids, etc… which will be deducted from the deposit.

My landlord is telling me that I have to pay for the 6 Months (until there is a new tenant found) + the 500 Pound and it has to be to the 1st of a Month.
What I see is as we have an early termination clause I do not have to pay further then my time of notice. Also in 1.1 it is mentioned to terminate on the 1st of a month at the end of the contract or after, not before. Also the fee of 500 Pounds to claim for "costs of re-marketing, voids, etc..." seems to me a little bit high as in earlier comments said "you can advert for free at sites like OpenRent".

What is the legal side on this? can I e. g. terminate to the 12th of a month in an early termination? Do I still have to pay when there is no new tenant until the 6 months are fullfilled? Can they charge me the 500 Pounds or is that unfair?

180

David20th August, 2018 @ 00:56

@Gina

We see this all the time, a landlord puts in a term that scares a tenant but would be deemed as an unfair contract term, as such it is unenforceable and without a severance clause can invalidate other parts of the contract.

So forget the £500 for a start.

As I said above...

The Landlord has to mitigate his loss, so he has to try to get a new tenant at the earliest possible convenience, the fact that you can get tenants free via OpenRent shows there is no loss.

It sounds like the landlord is trying to take advantage and maybe double dipping or they could just be lazy. Why would they hurry to

One thing I advise tenants to do is you advertise the property on open rent at a slightly higher rent, use the same criteria that was on the ad you responded to, create a shortlist of prospective tenants who have good employment, can provide several references etc.

You can present those to the Landlord in writing and even if they decline to use them, the process demonstrates clearly with evidence that you can be replaced as a tenant for very low cost. Any barrier that is invented will most likely be seen as not mitigating their loss.

I can look over the agreement and draft you a response with a document you can send them to bring them into the real world.

Remember that to get ANY money from you they have to either make a claim on your deposit, or take you to Court, the latter is expensive and I can help you educate your landlord about this.

Have you checked that your deposit was protected properly?

If not there is a sanction payable and this can often be leveraged to reach an agreement.

Have a check on the following links for the three schemes.

bit.ly/chkdep1

bit.ly/chkdep2

bit.ly/chkdep3

Do not provide too much detail here that may identify you or your landlord, use the forum.

In order to maintain your privacy I suggest you register with the Landlord forum link at the top of the page or use this link

landlordforumproject.co.uk

Once you have registered you will be sent an email to validate your registration, click that link and log into the forum, you may then send me a Private Message from the link below:

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When I reply your messages in the forum you will get a copy in your email but you MUST reply via the forum, if you reply via your email client I will NOT get the message. Once you login it should be self explanatory.

I will than gather some details and draft you a letter to send to your Landlord.

181

Gina20th August, 2018 @ 09:17

@David

Thank you so much for your help David! I just followed your advice and sent you my Details in the Forum.

182

Simon Pambin20th August, 2018 @ 11:57

Laving aside the ethics of advertising a property you don't own and which you have no intention of actually letting out, I'm not sure that a handful of initial inquiries on the basis of a free advertisement is evidence that a landlord can get a tenant of equal quality to the existing one for no cost whatsoever.

Having said that, the cost of a new tenant is one that the landlord would have to bear at the end of six months anyway so, assuming reasonable notice is given, it is not reasonable to charge more than a pro rata fraction of any reasonable total.

183

MdeB20th August, 2018 @ 17:20

@Gina 120

You have not included what you believe to be the break clause, so I cannot advise on whether or not you appear to have complied with it.

In general, a tenant cannot terminate before the end of the fixed term, except
a) in accordance with a break clause in the agreement, or
b) with the agreement of the landlord, on whatever mutually-agreeable terms they can reach.

Contrary to what David @181 says, I believe that a landlord is not legally required to mitigate loss by finding a new tenant (I believe there was a court judgement on this, but I do not have it at my fingertips), so the tenant is obliged to pay to the end of the term unless agreement is reached with the landlord.

The £500 sounds excessive, particularly as it includes "voids" but you have also been told you will have to pay until a replacement is found. I would suggest challenging it as unfair (but seek advice from Citizens' Advice or Shelter).

Remember that if the landlord used an agent to introduce you, then he will have paid an amount that reflects the expectation of receiving rent for 6 months, so if you leave early there is that cost to recover.
Also the fact (alluded to @181) that tenants can be found for free on OpenRent does not imply that there is no loss. Personally I use an agent that I trust to find me tenants and do all the leg work and legal paperwork etc. and that costs me 1 month's rent (I self-manage thereafter, so no additional cost to me, but there may be additional cost to a landlord that uses a full-management service). It is reasonable for a landlord to pay a professional to ensure that all his legal obligations are fulfilled because of the severe penalties if they are not.

You have not said if this is a joint tenancy or a sole tenancy.
If a joint tenancy, then ALL the joint tenants have to agree to end a tenancy early, including exercising a break clause.

184

MdeB20th August, 2018 @ 17:26

The need to mitigate a loss arises for other breaches of covenant, but not in the case of arrears of rent: Reichman & Anor. v Beveridge & Anor. [2006] EWCA Civ 1659.

185

David20th August, 2018 @ 18:13

@Gina

I have got your message and will be sending you through the documentation and draft letter.

You can safely ignore MdeB who likes to argue all the time, in simple terms, he is wrong.

186

MdeB20th August, 2018 @ 18:56

@David 186

I don't like to argue; I like to get to the correct answer with evidence.

When you have done whatever you decide to do, would you post back here describing what you did and how it turned out?

I like to learn.

188

Gina21st August, 2018 @ 08:33

@MdeB
I will think about that, but by now I am sorry to tell you that I think I won't.
You know such a situation can be really stressful and also causes me neck pain and other several health issues. I simply felt the feeling of there happens something unfair to me and even if I tried to solve it in a polite way with my landlord, I got beaten again. David gave me strength and the feeling, that I can fight that. There is someone on my side carrying even if he do not have to do that. But your post is just another beat. While writing your post, did you ask yourself how I will feel after reading that?
That it could make me feel helpless?
I am writing here, because I am looking for help and advice. If you want to argue about if things David says are right or not, please send him a PM. Because if you would have had the intension to help me, you would have formulated things different. Sensitive. And if you want to help people, please do not just say what is right and wrong. Give advice what is possible to do instead or where to go to get help. You were basically negative.

Every person is responsible with their words and acts they do to other people and what those does to that people. You can do good or bad. no matter you intended that or not there will always be a reaction. Please keep that in mind for your next posts. Thank you.

189

MdeB21st August, 2018 @ 16:49

@Gina.

You asked:
"What is the legal side on this? can I e. g. terminate to the 12th of a month in an early termination? Do I still have to pay when there is no new tenant until the 6 months are fullfilled? Can they charge me the 500 Pounds or is that unfair?".

I responded objectively to that. If you consider that to be negative or "a beat", then that is your prerogative.

I also pointed out that you had provided insufficient information to provide reasonable guidance.

I wish you a good life.

190

MdeB29th August, 2018 @ 09:43

@David

You have not stated why you believe Reichman & Anor. v Beveridge & Anor does not apply

Giles Peaker, an experienced housing lawyer, states that it does apply at https://nearlylegal.co.uk/2015/11/on-having-a-petard-and-being-hoist-by-it/

191

Simon Pambin29th August, 2018 @ 10:42

Do you have an example of its application to an AST? The fact that the Toogood case foundered for a different reason implies as much but it would be handy if there was something a bit more clear-cut in the case law somewhere.

192

David29th August, 2018 @ 11:32

@MdeB

I am not here to debate law or my tactics and strategies.

I am here to help real people with real problems; both Landlord and Tenant alike, I do not make a comment without knowing why it makes sense for BOTH parties.

I know Giles and as always everything in that article is right on the button, especially the impact of the Artworld case, but there are other considerations.

The case law you quote is about two businesses and whilst it will do if nothing else is around. It would only take one poorly funded tenant to appeal to get a better decision as consumers have way more protection than the firm of Solicitors in the case you quote. So if a Landlord insists, the Tenant can appeal higher and higher, that is how we got all the decisions we depend on today.

My advice to a Landlord is surrender the property and be reasonable, if you are too draconian you will encourage a tenant to sublet and trust me that is a way worse situation. In fact I can only see downsides for Landlords who try to insist on enforcing their rights too strictly.

I would urge any Landlord in this position to read the following post.

With regard to case law, we rely on many many consumer cases, it will always depend on the Judge you get on the day. We are able to argue that the case you quoted does not apply and have got decisions at a County Court level where the Judge has said to Counsel if your client wants to appeal they are welcome to. In our experience they don't because the costs just spiral.

Are they technically in the wrong, possibly yes, but some do not care, some seem to want the clarification.

When it is your turn and you have that tenant that for whatever reason wants to end their contract early, you can then decide if you want to spend £50k+ in legal fees to try and establish whether this applies to consumers.

As far as I am concerned it does not, you will of course disagree but that is your prerogative.

I am sure you will tell your tenants that they have to honour the contract to the end but they do not. You do need to mitigate your loss and do all that is necessary to keep the costs you intend to pass on to a minimum, you are also only allowed to pass on your actual charges, regardless of what your contract says.

Two prominent legally qualified housing law experts, Tessa and Giles, both saying landlords don't have to mitigate loses.

Against an anonymous billy bullshitter making unsubstantiated claims.

Who to believe?

194

The Landlord29th August, 2018 @ 15:10

Relax, KittyKat (if that's even your real name)!

195

KitKat29th August, 2018 @ 17:38

Curses! I never thought the moderator police would see through my cunning alias so quickly.

My swearing about that twat must have given the game away!

I'll have to give some deep thought for a new, impenetrable disguise that no one will ever suspect..

196

MdeB29th August, 2018 @ 17:59

@David

Thank you for explaining your position; it gives context to your comments.

Your approach appears to be to attempt to bully the landlord into not pursuing legal remedy, or if he does, then hoping that he is unrepresented or you get a sympathetic judge.

Nothing wrong with that, but you should be clear in your posts that what you are advocating is an approach aimed at getting what someone wants rather than a statement of the law as it stands.

I quite agree that in general landlords are best served by having a tenant that wants to be there and is paying them what is owed.

However, tenants have freely entered into a contract to pay for the term, and landlords should not be out of pocket because the tenant decides, for whatever reason, that they cannot, or do not want to, honour the contract.

I presume that you are legally qualified and registered to provide advocacy.

197

Simon Pambin30th August, 2018 @ 10:48

Ironically, if it were purely a question of contract then, as I understand it, the need to mitigate would apply: the Reichman judgement rests on the fact that a tenancy agreement is governed by property law, rather than contract law. Rent is due at the appointed intervals for the remainder of the tenancy, because the tenant cannot unilaterally end the agreement. Hypothetically, then, does it follow that the tenant, even if no longer resident, still enjoys all the rights to quiet enjoyment etc? In Toogood the landlord undertook major works after the tenants had left, thus ending the tenancy, but would a more minor infraction have been sufficient?

The problem with cases involving residential property is the sums involved are relatively small. £6,000 may not seem trivial to you or me but it could easily be dwarfed by the costs of pursuing a court action anywhere other than the small claims track. (Given that costs weren't awarded in Toogood I doubt either side came away much better off financially.) Thus we're left with the sort of out-of-court/edge-of-court realpolitik that David seems to specialise in.

198

Radhika23rd April, 2019 @ 17:46

Hi

Nice article.

We rented a property for 9 months contract. We had to move out of the house due to personal reasons in 4 months. Contacted landlord and he was not ready to let out the property and wanted us to pay the break clause. We paid rent and settled bills including council tax for rest 5 months. Now without informing us landlord has let aggreed the property. Is it legal ?

199

David24th April, 2019 @ 01:53

@Radhika

I am guessing your English is not that good, so my reply is based on what sense I can make of your post.

1. You gave notice to quit at 4 months into a 9 month tenancy

2. Your Landlord declined to release you

3. You did not have to pay the rent for the 5 months, the Landlord has to mitigate your loss

4. Now I assume you have seen a sign saying "let agreed" but you do not know when the new tenant takes occupancy.

Do not know what you mean by "pay the break clause" because a break clause just says WHEN you can go.

If you paid the 5 months then you have the right to stay in the property, if you have not left then they can't evict you

To be clear, in UK you cannot be evicted without a Court Order, if you remain in a property after your tenancy expires then a new tenancy is created in Law called a Statutory Periodic Tenancy.

So it will depend on whether you have possession.

If nobody has gone in and you no longer have keys but have the tenancy agreement valid for beyond now, you could get a locksmith to get you in and change locks.

There is nothing really illegal, it is more like your landlord had terms which were unfair contract terms and so invalid, but they need to be challenged in a Court.

Did your Landlord take a deposit and did they protect that deposit?

200

Radhika24th April, 2019 @ 10:14

Hi David ,

Thanks for your reply.

I am not a native English speaking person.

Yes I gave notice to quit at 4 month of a 9 months tenancy. My landlord was not interested in letting property for rent for rest of 5 months(until August 2019). He wanted us to pay rest 5 months rent and bills before moving out, as per contract. We did so. We are out of that property now.

Yes deposit was protected and its sorted.

Landlord has let aggreed the property now. Do I have a right to ask for my money back ? I don't want to go back to the house.

201

David24th April, 2019 @ 11:34

@Radhika

I assume that it is an agent that has put up a board but as I said before you need to find out when the new tenant moves in (or moved in.

Some people might ring the agent, but I would go have a look at the property first, if anyone is in there, introduce yourself, get their name, then ask if they have had any post, them casually ask them when they moved in. If nobody has moved in yet you could try asking the agent saying you viewed it and noticed the sign and ask if it is definite, have they signed agreement, when do they move in. Ask as if you were interested in letting.

As I said legal rights need to be enforced in a Court but the best approach is to give him a letter of claim saying that if he does not settle you will seek damages in the County Court.

I can help you with a letter to him WHEN YOU HAVE THE FACTS, I would also need to see the agreement.

I suggest you contact me directly via the forum of this site.

Click the Landlord forum link at top of this page or go to this link

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202

Alec25th April, 2019 @ 17:40

Hello,

I'd appreciate any guidance and advice on my current situation.

I rent a flat with another flatmate in an AST as joint tenants. The term of the tenancy is 12 months, started on the 7th of January 2019 and ending on the 6th of January 2020. We have a Break clause with a minimum of two months written notice served on or after day one of the fifth month of the initial term. We split rent and bills 50% 50%.

As an FYI I lived in another joint tenancy with this person last year in a house.

Her behaviour has become extremely erratic in the last 5 months and sometimes I have a lot of concerns for my safety and hers because she brings strange men in the house, tends to occupy a lot of the shared space in the flat (more than her actual room), doesn't lock the door, forgets to turn off the oven and makes a lot of noise. Throughout our tenancy, I have expressed my concerns and discomfort to her about her attitude and have also told her to be more mindful of the shared space in the house and to the guests or men she is bringing, respectively not to occupy the whole flat with them as we are only 2 people on the contract and it is not fair and acceptable to me to pay water, electricity and heat bills for her guests. And of course the noise and loud music. But she continuously disregards my opinions and does not care we have the equal rights in the flat.

The last argument we had in March was about "guests" she brought to the flat and told me that there would be loud noise during their visit and I should cope with it. I told her again that she should entertain her guests in her room and not restrict the shared space in the house. She then literally told me to either accept this or leave the flat. Of course I didn't do that because I repeated to her that we clearly have equal rights in the property and she cannot just throw me out whenever she feels like it, especially at night for 6 hours when she brings guys home. Note: I checked my tenancy agreement and there are no clear rules and definitions for guests, visitors, how long they should stay etc. Her guests usually stay from 1 day to 3-4 days a week. And when I am not in the flat (on a business trip or holidays etc), I know they stay even longer.

Beginning of April I decided to leave the property for a few weeks and go back to my home country for holidays and work remotely. I decided to inform the letting agency that I would not be at the property for said period of time, but did not disclose to them any ongoing issues with the flatmate.

I have discussed twice with my flatmate the break clause and she has agreed verbally and in writing to break the tenancy in May, however she has said often that she has money problems and might change her mind regarding the termination. To break the tenancy agreement, we are both required to serve notice, my notice will not suffice. Additionally, the Termination clause itself states that in order to terminate the contract, they need written notice from the both of us which in my opinion is not fair. This actually happened with the other tenancy where the agency said they couldn't consider only one notice, but in that case we both served notice and left after the initial 12 month term to move into the new home. Does this imply that if she wants to remain and I want to leave, I just can't leave the tenancy and I'm stuck with somebody who does not want to accept that we are both equal on the contract? I've read on the internet that in the case of joint tenancies, agencies or landlords expect us to solve our own problems, but the only solution to this problem is breaking the tenancy and renting separately. Should I involve the agency and tell them about these recurring issues and ask them to take action? I wouldn't mind being taken off the agreement as long as I recover my share of the deposit, but if I leave I doubt she'd return the money to me immediately because of her money issues - the tenancy agreement clearly states that if one tenant leaves, the other must pay him back the share of the deposit. I do not think this situation is fair because if she find a new tenant, that person will be living there on my deposit money and if they continue renting there for 2 years, does that mean I will see the deposit in my account in 2 years time?

The deposit is protected in accordance with the Compulsory Tenancy Deposit Protection
Scheme provisions of the Housing Act 2004

Please let me know your thoughts.

203

David26th April, 2019 @ 12:21

@Alex

I would need to see the contract but usually you are jointly and severally liable for the performance of the contract.

I strongly recommend that tenants seek a separate AST, I have seen so many cases where one or more tenants turns out to be inconsiderate/unstable/rude/untidy/offensive strike out as appropriate.

It is possible that some terms might be legally considered unfair contract terms.

Most Landlords want an easy life, some agents will give you all kinds of BS because they cannot be bothered.

It is a shame that you have not kept the agent informed as it would create an audit trail or at least send emails to the other tenant of your concerns.

Again I would have to read the contract, but it will terminate at the end of the 12 months, you may have obligations to inform the Landlord/Agent of your intention not to renew. If the other tenant remains in the property she will have a Statutory Periodic Tenancy created in Law but you are not bound by that.

Nobody want to be the referee in petty arguments, there may be terms in the contract that can be used and of course if they are doing anything illegal activity such as taking drugs, then reporting that on 101 might add strength to your position. You did not say whether your bedroom has a lock, I would be concerned to leave the property to these strangers if I were away.

Regardless of what the tenancy says, it is your Landlord who is responsible for the return of the deposit, there should have been an inventory at the beginning of the tenancy and I would insist on one when you leave because otherwise you could be held for damage she does to the property.

The Deposit Protection Scheme used should have informed you or the other tenant (usually one is nominated as Lead Tenant) you can make a request for your half of the deposit but the Landlord can object if they have cause which would lead the Deposit Protection Company taking evidence from you both.

I would definitely suggest informing the agent, I might ask them if they would object to you getting a replacement tenant. In student lets this sort of thing happens all the time and the contracts are structured accordingly.

There may well be terms that can be "twisted" to meet your needs, you could for example infer that she is subletting, I had a case a while back where a tenant sublet to 6 other tenants for drugs and alcohol. This created antisocial behaviour, over occupancy and other issues including crime.

If you contact me via the forum (details on post 202) I will be able to look at your tenancy and suggest a way forward.

204

MdeB26th April, 2019 @ 13:23

@Radhika

Did you sign a deed of surrender for the property?
If not, then the tenancy probably continued and if the landlord has re-entered, then you have probably been illegally evicted.

As a general rule (for others who may find themselves in the situation of wishing to surrender a tenancy before the end of the term), if the agreement is that you will pay all cots until the end of the term, then pay them monthly , not as a lump sum. In effect, you continue the tenancy to the end of the term and prevent unscrupulous landlords from double-dipping.

However, it is better to agree financial terms that avoid you needing to pay for the full term. Paying for 2 months (possibly plus agent's tenant-find commission for the remainder of the term) seems a reasonable compromise, as that gives landlord time to find a new tenant.

205

Alec26th April, 2019 @ 14:52

@David

Thanks for your advice, I've left you a PM, please let me know if you've received it.

A little introduction...

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